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201 U.S. 43 (1906)

HALE
v.
HENKEL.
No. 340.

Supreme Court of United States.

Argued January 4, 5, 1906.

Decided March 12, 1906.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK.

47*47 Mr. De Lancey Nicoll, with whom Mr. Junius Parker and Mr. John D. Lindsay were on

the brief, for appellant in this case and in No. 341 argued simultaneously herewith. [1]

Mr. Henry W. Taft, Special Assistant to The Attorney General, with whom The Attorney
General and Mr. Felix H. Levy, Special Assistant to The Attorney General, were on the brief,
for the United States in this case and in No. 341.

58*58 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of
the court.

Two issues are presented by the record in this case, which are so far distinct as to require
separate consideration. They depend upon the applicability of different provisions of the
Constitution, and, in determining the question of affirmance or reversal, should not be
confounded. The first of these involves the immunity of the witness from oral examination;
the second, the legality of his action in refusing to produce the documents called for by
the subpoena duces tecum.

1. The appellant justifies his action in refusing to answer the 59*59 questions propounded to

him, 1st, upon the ground that there was no specific "charge" pending before the grand jury
against any particular person; 2d, that the answers would tend to criminate him.

The first objection requires a definition of the word "charge" as used in this connection,
which it is not easy to furnish. An accused person is usually charged with crime by a
complaint made before a committing magistrate, which has fully performed its office when
the party is committed or held to bail, and it is quite unnecessary to the finding of an
indictment by a grand jury; or by an information of the district attorney, which is of no legal
value in prosecutions for felony; or by a presentment usually made, as in this case, for an
offense committed in the presence of the jury; or by an indictment which, as often as not, is
drawn after the grand jury has acted upon the testimony. If another kind of charge be
contemplated, when and by whom must it be preferred? Must it be in writing and if so, in
what form? Or may it be oral? The suggestion of the witness that he should be furnished
with a copy of such charge, if applicable to him is applicable to other witnesses summoned
before the grand jury. Indeed, it is a novelty in criminal procedure with which we are wholly
unacquainted, and one which might involve a betrayal of the secrets of the grand jury room.

Under the ancient English system, criminal prosecutions were instituted at the suit of private
prosecutors, to which the King lent his name in the interest of the public peace and good
order of society. In such cases the usual practice was to prepare the proposed indictment
and lay it before the grand jury for their consideration. There was much propriety in this, as
the most valuable function of the grand jury was not only to examine into the commission of
crimes, but to stand between the prosecutor and the accused, and to determine whether the
charge was founded upon credible testimony or was dictated by malice or personal ill will.

We are pointed to no case, however, holding that a grand jury 60*60 cannot proceed without
the formality of a written charge. Indeed, the oath administered to the foreman, which has
come down to us from the most ancient times, and is found in Rex v. Shaftsbury, 8 Howell's
State Trials, 759, indicates that the grand jury was competent to act solely on its own
volition. This oath was that "you shall diligently inquire and true presentments make of all
such matters, articles, and things as shall be given to you in charge, as of all other matters,
and things as shall come to your own knowledge touching this present service," etc. This
oath has remained substantially unchanged to the present day. There was a difference, too,
in the nomenclature of the two cases of accusations by private persons and upon their own
knowledge. In the former case their action was embodied in an indictment formally laid
before them for their consideration; in the latter case, in the form of a presentment. Says
Blackstone in his Commentaries, Book IV, page 301:

"A presentment, properly speaking, is a notice taken by a grand jury of any offense from
their own knowledge or observation, without any bill of indictment laid before them at the
suit of the King, as the presentment of a nuisance, a libel, and the like; upon which the
officer of the court must afterwards frame an indictment, before the party presented can be
put to answer it."

Substantially the same language is used in 1 Chitty Crim. Law, 162.

In United States v. Hill, 1 Brock. 156, it was indicated by Chief Justice Marshall that a
presentment and indictment are to be considered as one act, the second to be considered
only as an amendment to the first, and that the usage of this country has been to pass over,
unnoticed, presentments on which the attorney does not think it proper to institute
proceedings.

In a case arising in Tennessee the grand jury, without the agency of the district attorney,
had called witnesses before them, whom they interrogated as to their knowledge
concerning the then late Cuban expedition. Mr. Justice Catron sustained the legality of the
proceeding and compelled the witnesses 61*61 to answer. His opinion is reported in
Wharton's Criminal Pleading and Practice, 8th ed. § 337. He says: "The grand jury have the
undoubted right to send for witnesses and have them sworn to give evidence generally, and
to found presentments on the evidence of such witnesses; and the question here is,
whether a witness thus introduced is legally bound to disclose whether a crime has been
committed, and also who committed the crime." His charge contains a thorough discussion
of the whole subject.

While presentments have largely fallen into disuse in this country, the practice of grand
juries acting upon notice, either of their own knowledge or upon information obtained by
them, and incorporating their findings in an indictment, still largely obtains. Whatever doubts
there may be with regard to the early English procedure, the practice in this country, under
the system of public prosecutions carried on by officers of the State appointed for that
purpose, has been entirely settled since the adoption of the Constitution. In a lecture
delivered by Mr. Justice Wilson of this court, who may be assumed to have known the
current practice, before the students of the University of Pennsylvania, he says (Wilson's
Works, vol. II, page 213):

"It has been alleged, that grand juries are confined, in their inquiries, to the bills offered to
them, to the crimes given them in charge, and to the evidence brought before them by the
prosecutor. But these conceptions are much too contracted; they present but a very
imperfect and unsatisfactory view of the duty required from grand jurors, and of the trust
reposed in them. They are not appointed for the prosecutor or for the court; they are
appointed for the government and for the people; and of both the government and people it
is surely the concernment that, on one hand, all crimes, whether given or not given in
charge, whether described or not described with professional skill, should receive the
punishment, which the law denounces; and that, on the other hand, innocence, however
strongly assailed by accusations drawn up in regular form, and 62*62 by accusers,
marshalled in legal array, should, on full investigation, be secure in that protection, which
the law engages that she shall enjoy inviolate.

"The oath of a grand juryman — and his oath is the commission under which he acts —
assigns no limits, except those marked by diligence itself, to the course of his inquiries:
Why, then, should it be circumscribed by more contracted boundaries? Shall diligent inquiry
be enjoined? And shall the means and opportunities of inquiry be prohibited or restrained?"

Similar language was used by Judge Addison, President of the Court of Common Pleas, in
charging the grand jury at the session of the Common Pleas Court in 1791 (Addison's Pa.
Rep. Appx. p. 38):

"If the grand jury, of their own knowledge, or the knowledge of any of them, or from the
examination of witnesses, know of any offense committed in the county, for which no
indictment is preferred to them, it is their duty, either to inform the officer, who prosecutes
for the State, of the nature of the offense, and desire that an indictment for it be laid before
them; or, if they do not, or if no such indictment be given them, it is their duty to give such
information of it to the court; stating, without any particular form, the facts and
circumstances which constitute the offense. This is called a presentment."

The practice then prevailing, with regard to the duty of grand juries, shows that a
presentment may be based not only upon their own personal knowledge, but from the
examination of witnesses.
While no case has arisen in this court in which the question has been distinctly presented,
the authorities in the state courts largely preponderate in favor of the theory that the grand
jury may act upon information received by them from the examination of witnesses without a
formal indictment, or other charge previously laid before them. An analysis of cases
approving of this method of procedure would unduly burden this opinion, but the following
are the leading ones upon the subject: Ward v. State, 2 Missouri, 120; State v. Terry, 30
Missouri, 368; Ex 63*63 parte Brown, 72 Missouri, 83; Commonwealth v. Smyth, 11
Cushing, 473; State v. Wolcott, 21 Connecticut, 272, 280; State v. Magrath, 44 N.J.L. 227;
Thompson & Merriam on Juries, §§ 615-617. In Blaney v. Maryland, 74 Maryland, 153, the
court said:

"However restricted the functions of the grand juries may be elsewhere, we hold that in this
State they have plenary inquisitorial powers, and may lawfully themselves, and upon their
own motion, originate charges against offenders though no preliminary proceedings have
been had before a magistrate, and though neither the court not the state's attorney has laid
the matter before them."

The rulings of the inferior Federal courts are to the same effect. Mr. Justice Field, in
charging a grand jury in California (2 Sawy. 667), said to the grand jury acting upon their
own knowledge:

"Not by rumors or reports, but by knowledge acquired from the evidence before you, and
from your own observations. Whilst you are inquiring as to one offense, another and a
different offense may be proved, or witnesses before you may, in testifying, commit the
crime of perjury."

Similar language was used in United States v. Kimball, 117 Fed. Rep. 156, 161; United
States v. Reed, 2 Blatch. 435, 449; United States v. Terry, 39 Fed. Rep. 355. And
in Frisbie v. United States, 157 U.S. 160, it is said by Mr. Justice Brewer:

"But in this country it is for the grand jury to investigate any alleged crime, no matter how or
by whom suggested to them, and after determining that the evidence is sufficient to justify
putting the suspected party on trial, to direct the preparation of the formal charge or
indictment."

There are doubtless a few cases in the state courts which take a contrary view, but they are
generally such as deal with the abuses of the system, as the indiscriminate summoning of
witnesses with no definite object in view and in a spirit of meddlesome inquiry. In the most
pertinent of these cases, In re Lester, 77 Georgia, 143, the Mayor of Savannah, who was
also ex 64*64 officio the presiding judge of a court of record, was called upon to bring into
the Superior Court the "Information Docket" of his court, to be used as evidence by the
State in certain cases pending before the grand jury. It was held "that the powers of the
body are inquisitorial to a certain extent is undeniable; yet they have to be exercised within
well defined limits. . . . The grand jury can find no bill nor make any presentment except
upon the testimony of witnesses sworn in a particular case, where the party is charged with
a specified offense."
This case is readily distinguishable from the one under consideration, in the fact that the
subpoena in this case did specify the action as one between the United States and the
American Tobacco Company and the MacAndrews-Forbes Company; and that the Georgia
Penal Code prescribed a form of oath for the grand jury, "that the evidence you shall give
the grand jury on this bill of indictment (or presentment, as the case may be, here state the
case), shall be the truth," etc. This seems to confine the witness to a charge already laid
before the jury.

In Lewis v. Board of Commissioners, 74 N. Car. 194, the English practice, which requires a

preliminary investigation where the accused can confront the accuser and witnesses with
testimony, was adopted as more consonant to principles of justice and personal liberty. It
was further said that none but witnesses have any business before the grand jury, and that
the solicitor may not be present, even to examine them. The practice in this particular in the
Federal courts has been quite the contrary.

Other cases lay down the principle that it must be made to appear to the grand jury that
there is reason to believe that a crime has been committed, and that they have not the
power to institute or prosecute an inquiry on the chance that some crime may be
discovered. In Matter of Morse, 18 N.Y. Criminal Rep. 312; State v. Adams, 70 Tennessee,
647 (an unimportant case, turning upon a local statute). In Pennsylvania grand juries are
somewhat more restricted in their powers than is usual in other
States, McCullough v. Commonwealth, 67 Pa. St. 65*65 30; Rowand v. Commonwealth, 82
Pa. St. 405; Commonwealth v. Green, 126 Pa. St. 531, and in Tennessee inquisitorial
powers are granted in certain cases and withheld in others. State v. Adams, supra;
State v. Smith, Meigs, 99.

We deem it entirely clear that under the practice in this country, at least, the examination of
witnesses need not be preceded by a presentment or indictment formally drawn up, but that
the grand jury may proceed, either upon their own knowledge or upon the examination of
witnesses, to inquire for themselves whether a crime cognizable by the court has been
committed; that the result of their investigations may be subsequently embodied in an
indictment, and that in summoning witnesses it is quite sufficient to apprise them of the
names of the parties with respect to whom they will be called to testify, without indicating
the nature of the charge against them. So valuable is this inquisitorial power of the grand
jury that, in States where felonies may be prosecuted by information as well as indictment,
the power is ordinarily reserved to courts of impanelling grand juries for the investigation of
riots, frauds and nuisances, and other cases where it is impracticable to ascertain in
advance the names of the persons implicated. It is impossible to conceive that in such
cases the examination of witnesses must be stopped until a basis is laid by an indictment
formally preferred, when the very object of the examination is to ascertain who shall be
indicted. As criminal prosecutions are instituted by the State through an officer selected for
that purpose, he is vested with a certain discretion with respect to the cases he will call to
their attention, the number and character of the witnesses, the form in which the indictment
shall be drawn, and other details of the proceedings. Doubtless abuses of this power may
be imagined, as if the object of the inquiry were merely to pry into the details of domestic or
business life. But were such abuses called to the attention of the court, it would doubtless
be alert to repress them. While the grand jury may not indict upon current rumors or
unverified reports, they may act upon knowledge acquired either from their own
observations 66*66 or upon the evidence of witnesses given before them.

2. Appellant also invokes the protection of the Fifth Amendment to the Constitution, which
declares that no person "shall be compelled in any criminal case to be a witness against
himself," and in reply to various questions put to him he declined to answer, on the ground
that he would thereby incriminate himself.

The answer to this is found in a proviso to the General Appropriation Act of February 25,
1903, 32 Stat. 854, 904, that "no person shall be prosecuted or be subjected to any penalty
or forfeiture for or on account of any transaction, matter or thing concerning which he may
testify or produce evidence, documentary or otherwise, in any proceeding, suit, or
prosecution under said acts," of which the Anti Trust Law is one, providing, however, that
"no person so testifying shall be exempt from prosecution or punishment for perjury
committed in so testifying."

While there may be some doubt whether the examination of witnesses before a grand jury
is a suit or prosecution, we have no doubt that it is a "proceeding" within the meaning of this
proviso. The word should receive as wide a construction as is necessary to protect the
witness in his disclosures, whenever such disclosures are made in pursuance of a judicial
inquiry, whether such inquiry be instituted by a grand jury, or upon the trial of an indictment
found by them. The word "proceeding" is not a technical one, and is aptly used by courts to
designate an inquiry before a grand jury. It has received this interpretation in a number of
cases. Yates v. The Queen, 14 Q.B.D. 648; Hogan v. State, 30 Wisconsin, 428.

The object of the amendment is to establish in express language and upon a firm basis the
general principle of English and American jurisprudence, that no one shall be compelled to
give testimony which may expose him to prosecution for crime. It is not declared that he
may not be compelled to testify to facts which may impair his reputation for probity, or even
tend to disgrace him, but the line is drawn at testimony that may expose 67*67 him to
prosecution. If the testimony relate to criminal acts long since past, and against the
prosecution of which the statute of limitations has run, or for which he has already received
a pardon or is guaranteed an immunity, the amendment does not apply.

The interdiction of the Fifth Amendment operates only where a witness is asked to
incriminate himself — in other words, to give testimony which may possibly expose him to a
criminal charge. But if the criminality has already been taken away, the Amendment ceases
to apply. The criminality provided against is a present, not a past criminality, which lingers
only as a memory and involves no present danger of prosecution. To put an extreme case,
a man in his boyhood or youth may have committed acts which the law pronounces
criminal, but it would never be asserted that he would thereby be made a criminal for life. It
is here that the law steps in and says that if the offense be outlawed or pardoned, or its
criminality has been removed by statute, the Amendment ceases to apply. The extent of this
immunity was fully considered by this court in Counselman v. Hitchcock, 142 U.S. 547, in
which the immunity offered by Rev. Stat. section 860, was declared to be insufficient. In
consequence of this decision an act was passed applicable to testimony before the
Interstate Commerce Commission in almost the exact language of the act of February 25,
1903, above quoted. This act was declared by this court in Brown v. Walker, 161 U.S.
591, to afford absolute immunity against prosecution for the offense to which the question
related, and deprived the witness of his constitutional right to refuse to answer. Indeed, the
act was passed apparently to meet the declaration in Counselman v. Hitchcock, p. 586, that
"a statutory enactment, to be valid, must afford absolute immunity against future
prosecution for the offense to which the question relates." If the constitutional Amendment
were unaffected by the immunity statute, it would put it within the power of the witness to be
his own judge as to what would tend to incriminate him, and would justify him in refusing to
answer almost 68*68 any question in a criminal case, unless it clearly appeared that the
immunity was not set up in good faith.

We need not restate the reasons given in Brown v. Walker, both in the opinion of the court,
and in the dissenting opinion, wherein all the prior authorities were reviewed, and a
conclusion reached by a majority of the court, which fully covers the case under
consideration.

The suggestion that a person who has testified compulsorily before a grand jury may not be
able, if subsequently indicted for some matter concerning which he testified, to procure the
evidence necessary to maintain his plea, is more fanciful than real. He would have not only
his own oath in support of his immunity, but the notes often, though not always, taken of the
testimony before the grand jury, as well as the testimony of the prosecuting officer, and of
every member of the jury present. It is scarcely possible that all of them would have
forgotten the general nature of his incriminating testimony or that any serious conflict would
arise therefrom. In any event, it is a question relating to the weight of the testimony, which
could scarcely be considered in determining the effect of the immunity statute. The difficulty
of maintaining a case upon the available evidence is a danger which the law does not
recognize. In prosecuting a case, or in setting up a defense, the law takes no account of the
practical difficulty which either party may have in procuring his testimony. It judges of the
law by the facts which each party claims, and not by what he may ultimately establish.

The further suggestion that the statute offers no immunity from prosecution in the state
courts was also fully considered in Brown v. Walker and held to be no answer. The
converse of this was also decided in Jack v. Kansas, 199 U.S. 372, namely, that the fact
that an immunity granted to a witness under a state statute would not prevent a prosecution
of such witness for a violation of a Federal statute, did not invalidate such statute under the
Fourteenth Amendment. It was held both by this court and by the Supreme Court of Kansas
that 69*69 the possibility that information given by the witness might be used under the
Federal act did not operate as a reason for permitting the witness to refuse to answer, and
that a dangerous unsubstantial and remote did not impair the legal immunity. Indeed, if the
argument were a sound one it might be carried still further and held to apply not only to
state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws
of other States to which the witness might have subjected himself. The question has been
fully considered in England, and the conclusion reached by the courts of that country that
the only danger to be considered is one arising within the same jurisdiction and under the
same sovereignty. Queen v. Boyes, 1 B. & S. 311; King of the Two Sicilies v. Willcox, 7
State Trials (N.S.), 1049, 1068; State v. March, 1 Jones (N. Car.), 526; State v. Thomas, 98
N. Car. 599.
The case of United States v. Saline Bank, 1 Pet. 100, is not in conflict with this. That was a
bill for discovery, filed by the United States against the cashier of the Saline Bank, in the
District Court of the Virginia District, who pleaded that the emission of certain unlawful bills
took place, within the State of Virginia, by the law whereof penalties were inflicted for such
emissions. It was held that defendants were not bound to answer and subject themselves to
those penalties. It is sufficient to say that the prosecution was under a state law which
imposed the penalty, and that the Federal court was simply administering the state law, and
no question arose as to a prosecution under another jurisdiction.

But it is further insisted that while the immunity statute may protect individual witnesses it
would not protect the corporation of which appellant was the agent and representative. This
is true, but the answer is that it was not designed to do so. The right of a person under the
Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the
witness. It was never intended to permit him to plead the fact that some third person might
be incriminated by his testimony, even 70*70 though he were the agent of such person. A
privilege so extensive might be used to put a stop to the examination of every witness who
was called upon to testify before the grand jury with regard to the doings or business of his
principal, whether such principal were an individual or a corporation. The question whether
a corporation is a "person" within the meaning of this Amendment really does not arise,
except perhaps where a corporation is called upon to answer a bill of discovery, since it can
only be heard by oral evidence in the person of some one of its agents or employes. The
Amendment is limited to a person who shall be compelled in any criminal case to be a
witness against himself, and if he cannot set up the privilege of a third person, he certainly
cannot set up the privilege of a corporation. As the combination or conspiracies provided
against by the Sherman Anti Trust Act can ordinarily be proved only by the testimony of
parties thereto, in the person of their agents or employee, the privilege claimed would
practically nullify the whole act of Congress. Of what use would it be for the legislature to
declare these combinations unlawful if the judicial power may close the door of access to
every available source of information upon the subject? Indeed, so strict is the rule that the
privilege is a personal one that it has been held in some cases that counsel will not be
allowed to make the objection. We hold that the questions should have been answered.

3. The second branch of the case relates to the non-production by the witness of the books
and papers called for by the subpoena duces tecum. The witness put his refusal on the
ground, first, that it was impossible for him to collect them within the time allowed; second,
because he was advised by counsel that under the circumstances he was under no
obligation to produce them; and, finally, because they might tend to incriminate him.

Had the witness relied solely upon the first ground, doubtless the court would have given
him the necessary time. The last ground we have already held untenable. While the second
ground does not set forth with technical accuracy the real reason 71*71 for declining to
produce them, the witness could not be expected to speak with legal exactness, and we
think is entitled to assert that the subpoena was an infringement upon the Fourth
Amendment to the Constitution, which declares that "the right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized."
The construction of this amendment was exhaustively considered in the case
of Boyd v. United States, 116 U.S. 616, which was an information in rem against certain
cases of plate glass, alleged to have been imported in fraud of the revenue acts. On the trial
it became important to show the quantity and value of the glass contained in a number of
cases previously imported; and the district judge, under section 5 of the act of June 22,
1874, directed a notice to be given to the claimants, requiring them to produce the invoice of
these cases under penalty that the allegations respecting their contents should be taken as
confessed. We held (p. 622) "that a compulsory production of a man's private papers to
establish a criminal charge against him, or to forfeit his property, is within the scope of the
Fourth Amendment to the Constitution, in all cases in which a search and seizure would
be," and that the order in question was an unreasonable search and seizure within that
Amendment.

The history of this provision of the Constitution and its connection with the former practice of
general warrants, or writs of assistance, was given at great length, and the conclusion
reached that the compulsory extortion of a man's own testimony, or of his private papers, to
connect him with a crime or a forfeiture of his goods, is illegal (p. 634), "is compelling him to
be a witness against himself, within the meaning of the Fifth Amendment to the Constitution,
and is the equivalent of a search and seizure — and an unreasonable search and seizure
— within the Fourth Amendment.

72*72 Subsequent cases treat the Fourth and Fifth Amendments as quite distinct, having
different histories, and performing separate functions. Thus in the case of Interstate
Commerce Commission v. Brimson, 154 U.S. 447, the constitutionality of the Interstate
Commerce Act, so far as it authorized the Circuit Courts to use their processes in aid of
inquiries before the Commission, was sustained, the court observing in that connection:

"It was clearly competent for Congress, to that end, to invest the Commission with authority
to require the attendance and testimony of witnesses, and the production of books, papers,
tariffs, contracts, agreements and documents relating to any matter legally committed to
that body for investigation. We do not understand that any of these propositions are
disputed in this case."

The case of Adams v. New York, 192 U.S. 585, which was a writ of error to the Supreme
Court of the State of New York, involving the seizure of certain gambling paraphernalia, was
treated as involving the construction of the Fourth and Fifth Amendments to the Federal
Constitution. It was held, in substance, that the fact that papers pertinent to the issue may
have been illegally taken from the possession of the party against whom they are offered,
was not a valid objection to their admissibility; that the admission, as evidence in a criminal
trial of papers found in the execution of a valid search warrant prior to the indictment, was
not an infringement of the Fifth Amendment, and that by the introduction of such evidence
defendant was not compelled to incriminate himself. The substance of the opinion is
contained in the following paragraph. It was contended that "If a search warrant is issued for
stolen property and burglars' tools be discovered and seized, they are to be excluded from
testimony by force of these Amendments. We think they were never intended to have that
effect, but are rather designed to protect against compulsory testimony from a defendant
against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen
or the unwarranted seizure of his papers and property, and to 73*73 render invalid legislation
or judicial procedure having such effect."

The Boyd case must also be read in connection with the still later case of Interstate
Commerce Commission v. Baird, 194 U.S. 25, which arose upon the petition of the
Commission for orders requiring the testimony of witnesses and the production of certain
books, papers and documents. The case grew out of a complaint against certain railway
companies that they charged unreasonable and unjust rates for the transportation of
anthracite coal. Objection was made to the production of certain contracts between these
companies upon the ground that it would compel the witnesses to furnish evidence against
themselves in violation of the Fifth Amendment, and would also subject the parties to
unreasonable searches and seizures. It was held that the Circuit Court erred in holding the
contracts to be irrelevant, and in refusing to order their production as evidence by the
witnesses who were parties to the appeal. In delivering the opinion of the court the Boyd
case was again considered in connection with the Fourth and Fifth Amendments, and the
remark made by Mr. Justice Day that the immunity statute of 1893 "protects the witness
from such use of the testimony given as will result in his punishment for crime or the
forfeiture of his estate."

Having already held that by reason of the immunity act of 1903, the witness could not avail
himself of the Fifth Amendment, it follows that he cannot set up that Amendment as against
the production of the books and papers, since in respect to these he would also be
protected by the immunity act. We think it quite clear that the search and seizure clause of
the Fourth Amendment was not intended to interfere with the power of courts to compel,
through a subpoena duces tecum, the production, upon a trial in court, of documentary
evidence. As remarked in Summers v. Moseley, 2 Cr. & M. 477, it would be "utterly
impossible to carry on the administration of justice" without this writ. The following
authorities are conclusive upon this question: Amey v. Long, 9 East,
473; Bull v. Loveland, 74*74 10 Pick. 9; U.S. Express Co. v. Henderson, 69 Iowa, 40;
Greenleaf on Evidence, 469a.

If, whenever an officer or employe of a corporation were summoned before a grand jury as
a witness he could refuse to produce the books and documents of such corporation, upon
the ground that they would incriminate the corporation itself, it would result in the failure of a
large number of cases where the illegal combination was determinable only upon the
examination of such papers. Conceding that the witness was an officer of the corporation
under investigation, and that he was entitled to assert the rights of the corporation with
respect to the production of its books and papers, we are of the opinion that there is a clear
distinction in this particular between an individual and a corporation, and that the latter has
no right to refuse to submit its books and papers for an examination at the suit of the State.
The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on
his private business in his own way. His power to contract is unlimited. He owes no duty to
the State or to his neighbors to divulge his business, or to open his doors to an
investigation, so far as it may tend to criminate him. He owes no such duty to the State,
since he receives nothing therefrom, beyond the protection of his life and property. His
rights are such as existed by the law of the land long antecedent to the organization of the
State, and can only be taken from him by due process of law, and in accordance with the
Constitution. Among his rights are a refusal to incriminate himself, and the immunity of
himself and his property from arrest or seizure except under a warrant of the law. He owes
nothing to the public so long as he does not trespass upon their rights.

Upon the other hand, the corporation is a creature of the State. It is presumed to be
incorporated for the benefit of the public. It receives certain special privileges and
franchises, and holds them subject to the laws of the State and the limitations of its charter.
Its powers are limited by law. It can make no contract not authorized by its charter. Its rights
to 75*75 act as a corporation are only preserved to it so long as it obeys the laws of its
creation. There is a reserved right in the legislature to investigate its contracts and find out
whether it has exceeded its powers. It would be a strange anomaly to hold that a State,
having chartered a corporation to make use of certain franchises, could not in the exercise
of its sovereignty inquire how these franchises had been employed, and whether they had
been abused, and demand the production of the corporate books and papers for that
purpose. The defense amounts to this: That an officer of a corporation, which is charged
with a criminal violation of the statute, may plead the criminality of such corporation as a
refusal to produce its books. To state this proposition is to answer it. While an individual
may lawfully refuse to answer incriminating questions unless protected by an immunity
statute, it does not follow that a corporation, vested with special privileges and franchises,
may refuse to show its hand when charged with an abuse of such privileges.

It is true that the corporation in this case was chartered under the laws of New Jersey, and
that it receives its franchise from the legislature of that State; but such franchises, so far as
they involve questions of interstate commerce, must also be exercised in subordination to
the power of Congress to regulate such commerce, and in respect to this the General
Government may also assert a sovereign authority to ascertain whether such franchises
have been exercised in a lawful manner, with a due regard to its own laws. Being subject to
this dual sovereignty, the General Government possesses the same right to see that its own
laws are respected as the State would have with respect to the special franchises vested in
it by the laws of the State. The powers of the General Government in this particular in the
vindication of its own laws, are the same as if the corporation had been created by an act of
Congress. It is not intended to intimate, however, that it has a general visitatorial power over
state corporations.

4. Although, for the reasons above stated, we are of the 76*76 opinion that an officer of a
corporation which is charged with a violation of a statute of the State of its creation, or of an
act of Congress passed in the exercise of its constitutional powers, cannot refuse to
produce the books and papers of such corporation, we do not wish to be understood as
holding that a corporation is not entitled to immunity, under the Fourth Amendment,
against unreasonable searches and seizures. A corporation is, after all, but an association
of individuals under an assumed name and with a distinct legal entity. In organizing itself as
a collective body it waives no constitutional immunities appropriate to such body. Its
property cannot be taken without compensation. It can only be proceeded against by due
process of law, and is protected, under the Fourteenth Amendment, against unlawful
discrimination. Gulf &c. Railroad Company v. Ellis, 165 U.S. 150, 154, and cases cited.
Corporations are a necessary feature of modern business activity, and their aggregated
capital has become the source of nearly all great enterprises.
We are also of opinion that an order for the production of books and papers may constitute
an unreasonable search and seizure within the Fourth Amendment. While a search of
ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible
dispossession of the owner, still, as was held in the Boyd case, the substance of the offense
is the compulsory production of private papers, whether under a search warrant or
a subpoena duces tecum, against which the person, be he individual or corporation, is
entitled to protection. Applying the test of reasonableness to the present case, we think
the subpoena duces tecum is far too sweeping in its terms to be regarded as reasonable. It
does not require the production of a single contract, or of contracts with a particular
corporation, or a limited number of documents, but all understandings, contracts or
correspondence between the MacAndrews & Forbes Company, and no less than six
different companies, as well as all reports made, and accounts rendered by such
companies from the date of the organization of the MacAndrews & Forbes
Company, 77*77 as well as all letters received by that company since its organization from
more than a dozen different companies, situated in seven different States in the Union.

If the writ had required the production of all the books, papers and documents found in the
office of the MacAndrews & Forbes Company, it would scarcely be more universal in its
operation, or more completely put a stop to the business of that company. Indeed, it is
difficult to say how its business could be carried on after it had been denuded of this mass
of material, which is not shown to be necessary in the prosecution of this case, and is
clearly in violation of the general principle of law with regard to the particularity required in
the description of documents necessary to a search warrant or subpoena. Doubtless many,
if not all, of these documents may ultimately be required, but some necessity should be
shown, either from an examination of the witnesses orally, or from the known transactions
of these companies with the other companies implicated, or some evidence of their
materiality produced, to justify an order for the production of such a mass of papers. A
general subpoena of this description is equally indefensible as a search warrant would be if
couched in similar terms. Ex parte Brown, 72 Missouri, 83; Shaftsbury v. Arrowsmith, 4 Ves.
66; Lee v. Angas, L.R. 2 Eq. 59.

Of course, in view of the power of Congress over interstate commerce to which we have
adverted, we do not wish to be understood as holding that an examination of the books of a
corporation, if duly authorized by act of Congress, would constitute an unreasonable search
and seizure within the Fourth Amendment.

But this objection to the subpoena does not go to the validity of the order remanding the
petitioner, which is, therefore,

Affirmed.

MR. JUSTICE HARLAN, concurring.

I concur entirely in what is said in the opinion of the court 78*78 in reference to the powers
and functions of the grand jury and as to the scope of the Fifth Amendment to the
Constitution. I concur also in the affirmance of the judgment, but must withhold my assent to
some of the views expressed in the opinion. It seems to me that the witness was not entitled
to assert, as a reason for not obeying the order of the court, that the subpoena duces
tecum was an infringement of the Fourth Amendment, which declares that "the right of
the People to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." It may be, I am inclined to think as a
matter of procedure and practice, that the subpoena duces tecum was too broad and
indefinite. But the action of the court in that regard was, at the utmost, only error, and that
error did not affect its jurisdiction to make the order, nor authorize the witness — whose
personal rights, let it be observed, were in no wise involved in the pending inquiry — to
refuse compliance with the subpoena, upon the ground that it involved an unreasonable
search and seizure of the books, papers and records of the corporation whose conduct, so
far as it related to the Sherman Anti Trust Act, was the subject of examination. It was not his
privilege to stand between the corporation and the Government in the investigation before
the grand jury. In my opinion, a corporation — "an artificial being, invisible, intangible and
existing only in contemplation of law" — cannot claim the immunity given by the Fourth
Amendment; for, it is not a part of the "People," within the meaning of that Amendment. Nor
is it embraced by the word "persons" in the Amendment. If a contrary view obtains, the
power of the Government by its representatives to look into the books, records and papers
of a corporation of its own creation, to ascertain whether that corporation has obeyed or is
defying the law, will be greatly curtailed, if not destroyed. If a corporation, when its affairs
are under examination by a grand jury 79*79 proceeding in its work under the orders of the
court, can plead the immunity given by the Fourth Amendment against unreasonable
searches and seizures, may it not equally rely upon that Amendment to protect it even
against a statute authorizing or directing the examination by the agents of the Government
creating it, of its papers, documents and records, unless they specify the particular papers,
documents and records to be examined? If the order of the court below is to be deemed
invalid as an unreasonable search and seizure of the papers, books and records of the
corporation, could it be deemed valid if made under the express authority of an act of
Congress? Congress could not, any more than a court, authorize an unreasonable seizure
or search in violation of the Fourth Amendment. In my judgment when a grand jury seeking,
in the discharge of its public duties, to ascertain whether a corporation has violated the law
in any particular, requires the production of the books, papers and records of such
corporation, no officer of that corporation can rightfully refuse, when ordered to do so by the
court, to produce such books, papers and records in his official custody, upon the ground
simply that the order was, as to the corporation, an unreasonable search and seizure within
the meaning of the Fourth Amendment.

MR. JUSTICE McKENNA, also concurring.

I concur in the judgment but not in all the propositions declared by the court. I think the
subpoena is sufficiently definite. The charge pending was a violation of the Anti Trust Act of
1890. The documents and papers sought were the understandings and agreements of the
accused companies. That the documents commanded were many or evidenced
transactions occurring through a period of time are not circumstances fatal to the validity of
the subpoena. If there was a violation of the Anti Trust Act, that is, combinations in restraint
of trade, it would be probably evidenced by formal agreements, but it might also be
evidenced or its transactions alluded to in telegrams 80*80 and letters sent during the time
the combination operated. Each telegram, each letter, would contribute proof, and therefore
material testimony. Why then should they not be produced? What answer is given? It is said
the subpoena is tantamount to requiring all the books, papers and documents found in the
office of the MacAndrews & Forbes Company, and an embarrassment is conjectured as a
result to its business. These, then, I assume, are the detrimental consequences that will be
produced by obedience to the subpoena. If such consequences could be granted they are
not fatal to the subpoena. But they may be denied. There can be at most but a temporary
use of the books, and this can be accommodated to the convenience of parties. It is matter
for the court, and we cannot assume that the court will fail of consideration for the interest of
parties or subject them to more inconvenience than the demands of justice may require.

I cannot think that the consequences mentioned are important or necessary to the
argument. A more serious matter is the application of the Fourth Amendment of the
Constitution of the United States.

It is said "a search implies a quest by an officer of the law; a seizure contemplates a forcible
dispossession of the owner." Nothing can be more direct and plain; nothing more
expressive to distinguish a subpoena from a search warrant. Can a subpoena lose this
essential distinction from a search warrant by the generality or speciality of its terms? I think
not. The distinction is based upon what is authorized or directed to be done — not upon the
form of words by which the authority or command is given. "The quest of an officer" acts
upon the things themselves — may be secret, intrusive, accompanied by force. The service
of a subpoena is but the delivery of a paper to a party — is open and aboveboard. There is
no element of trespass or force in it. It does not disturb the possession of property. It cannot
be finally enforced except after challenge, and a judgment of the court upon the challenge.
This is a safeguard against abuse the same as it is of other processes of the 81*81 law, and
it is all that can be allowed without serious embarrassment to the administration of justice.
Of course, it constrains the will of parties, subjects their property to the uses of proof. But
we are surely not prepared to say that such uses are unreasonable or are sacrifices which
the law may not demand.

However, I may apprehend consequences that the opinion does not intend. It seems to be
admitted that many, if not all, of the documents may ultimately be required, but it is said
"some necessity should be shown, either from an examination of the witnesses orally, or
from the known transactions of these companies with the other companies implicated, or
some evidence of their materiality produced, to justify an order for their production." This
intimates a different objection to the order of the court than the generality of the subpoena,
and, if good at all, would be good even though few instead of many documents had been
required or described ever so specifically. I am constrained to dissent from it. The
materiality of his testimony is not open to a witness to determine, and the order of proof is
for the court. Besides, if a grand jury may investigate without specific charge, may
investigate upon the suggestion of one of its members, must it demonstrate the materiality
of every piece of testimony it calls for before it can require the testimony? So limit the power
of a grand jury and you may make it impotent in cases where it needs power most and in
which its function can best be exercised.

But what does the record show? It shows that Hale refused to give the testimony that, this
court says, should have preceded the order under review. He refused to answer what the
business of the MacAndrew & Forbes Company was or where its office was, or whether
there was an agreement with the company and the American Tobacco Company in regard
to the products of their respective businesses or whether the company he represented sold
its products throughout the United States. The ground of refusal was that there was no legal
warrant or authority for his examination, not that the documents or testimony 82*82 was not
material or not shown to be material. Besides, after objection made to the laying of a
foundation, complaint cannot be made that no foundation was laid. And it seems to be an
afterthought in the proceedings on habeas corpus that the ground objection to examination
did not exclusively refer to the want of power in the grand jury.

By virtue of its dominion over interstate commerce Congress has power, the opinion of the
court asserts, over corporations engaged in that commerce. And the power is the same as if
the corporations had been created by Congress. And yet it is said to be a power subject to
the limitation of the Fourth Amendment. To this I am not prepared to assent. I have already
pointed out the essential distinction between a subpoena duces tecum and a search
warrant, and, it may be, the case at bar demands from me no expression of opinion of the
Fourth Amendment. And I am mindful, too, of the reservation in the opinion of the court of
the power of Congress to require by direct legislation the fullest disclosures of their affairs
from corporations engaged in interstate commerce. While recognizing this may be true, and,
that until such power is exercised, there may be reasons for holding that corporations are
entitled to the protection of the Fourth Amendment, there are reasons against the
contention, and I wish to guard against any action which would preclude against their
consideration in cases where the Fourth Amendment may be a more determining factor
than it is in the case at bar. There are certainly strong reasons for the contention that if
corporations cannot plead the immunity of the Fifth Amendment, they cannot plead the
immunity of the Fourth Amendment. The protection of both Amendments, it can be
contended, is against the compulsory production of evidence to be used in criminal trials.
Such warrants are used in aid of public prosecutions (Cooley Constitutional Lim. 6th ed.
364), and in Boyd v. United States, 116 U.S. 616, a relation between the Fourth
Amendment and the Fifth Amendment was declared. It was said the Amendments throw
great light on each other, "for the `unreasonable searches and seizures'
condemned 83*83 in the Fourth Amendment are almost always made for the purpose of
compelling a man to give evidence against himself, which in criminal cases is condemned in
the Fifth Amendment; and compelling a man `in a criminal case to be a witness against
himself,' which is condemned in the Fifth Amendment, throws light on the question as to
what is an `unreasonable search and seizure' within the meaning of the Fourth Amendment.
And we have been unable to perceive that the seizure of a man's private books and papers
to be used in evidence against him is substantially different from compelling him to be a
witness against himself." Boyd v. United States is still recognized, and if its reasoning
remains unimpaired, and the purpose and effect of the Fourth Amendment receives
illumination from the Fifth, or, to express the idea differently, if the Amendments are the
complements of each other, directed against the different ways by which a man's immunity
from giving evidence against himself may be violated, it would seem a strong, if not an
inevitable conclusion, that if corporations have not such immunity they can no more claim
the protection of the Fourth Amendment than they can of the Fifth.

MR. JUSTICE BREWER, with whom the CHIEF JUSTICE concurred, dissenting.
With what is said in the opinion of the court of the necessity of a "charge," with the
proposition that the immunity granted by the Federal statute is sufficient protection against
both the Nation and the several States, with the holding that the protection accorded by the
Fifth Amendment to the Constitution is personal to the individual and does not, extend to an
agent of an individual or justify such agent in refusing to give testimony incriminating his
principal, and also that the subpoena duces tecum cannot be sustained, I fully agree.

Further, I desire to emphasize certain truths which in this and other cases decided to-day
seem to be ignored or depreciated. The immunities and protection of articles 4, 5 and
14 84*84 of the Amendments to the Federal Constitution are available to a corporation so far
as in the nature of things they are applicable. Its property may not be taken for public use
without just compensation. It cannot be subjected to unreasonable searches and seizures. It
cannot be deprived of life or property without due process of law.

It may be well to compare the words of description in articles 4 and 5 with those in article
14:

"Article 4. The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

"Article 5. No person . . . shall be compelled in any criminal case to be a witness against

himself, nor to be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation."

"Article 14. . . Nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws."

In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, 396, Mr. Chief Justice
Waite said:

"The court does not wish to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution, which forbids a State to deny to any person
within its jurisdiction the equal protection of the laws, applies to these corporations. We are
all of opinion that it does."

See also Pembina Mining Company v. Pennsylvania, 125 U.S. 181; Missouri Pacific

Railway Company v. Mackey, 127 U.S. 205; Minneapolis & St. Louis Railway
Company v. Beckwith, 129 U.S. 26; Charlotte &c. Railroad v. Gibbes, 142 U.S.
386; Monongahela Navigation Company v. United States, 148 U.S. 312; Gulf, Colorado &
Santa Fe Ry. v. Ellis, 165 U.S. 150, 154, 85*85 and cases cited; Chicago, Burlington &
Quincy Railroad Company v. Chicago, 166 U.S. 226.

These decisions were under the Fourteenth Amendment, but if the word "person" in that
Amendment includes corporations, it also includes corporations when used in the Fourth
and Fifth Amendments.
By the Fourth Amendment the "people" are guaranteed protection against unreasonable
searches and seizures. "Citizens" is a descriptive word; no broader, to say the least, than
"people."

As repeatedly held, a corporation is a citizen of a State for purposes of jurisdiction of

Federal courts, and, as a citizen, it may locate mining claims under the laws of the United
States, McKinley v. Wheeler, 130 U.S. 630, and is entitled to the benefit of the Indian
Depredation Acts. United States v. North-western Express Company, 164 U.S. 686. Indeed,
it is essentially but an association of individuals, to which is given certain rights and
privileges, and in which is vested the legal title. The beneficial ownership is in the
individuals, the corporation being simply an instrumentality by which the powers granted to
these associated individuals may be exercised. As said by Chief Justice Marshall
in Providence Bank v. Billings, 4 Pet. 514, 562: "The great object of an incorporation is to
bestow the character and properties of individuality on a collective and changing body of
men."

United States v. Amedy, 11 Wheat. 392, was the case of an indictment under an act of

Congress for destroying a vessel with intent to prejudice the underwriters. The act of
Congress declared that "if any person shall . . . willfully and corruptly cast away . . . any ship
or vessel . . . with intent or design to prejudice any person or persons that hath
underwritten, or shall underwrite, any policy," etc. The indictment charged an intent to
defraud an incorporated insurance company, and the court held that a corporation is a
person within the meaning of the act, saying (p. 412):

"The mischief intended to be reached by the statute is the 86*86 same, whether it respects

private or corporate persons. That corporations are, in law, for civil purposes, deemed
persons, is unquestionable. And the citation from 2 Inst. 736, establishes that they are so
deemed within the purview of penal statutes. Lord Coke, there, in commenting on the
statute of 31 Eliz. c. 7, respecting the erection of cottages, where the word used is, `no
person shall,' etc., says, `this extends as well to persons politic and incorporate, as to
natural persons whatsoever.'"

Neither does the fact that a corporation is engaged in interstate commerce in any manner
abridge the protection and applicable immunities accorded by the Amendments. The
corporation of which the petitioner was an officer was chartered by a State, and over it the
General Government has no more control than over an individual citizen of that State. Its
power to regulate commerce does not carry with it a right to dispense with the Fourth and
Fifth Amendments, to unreasonably search or seize the papers of an individual or
corporation engaged in such commerce, or deprive him or it of any immunity or protection
secured by either Amendment.

It is true that there is a power of supervision and inspection of the inside workings of a
corporation, but that belongs to the creator of the corporation. If a State has chartered it, the
power is lodged in the State. If the Nation, then in the Nation, and it cannot be exercised by
any other authority. It is in the nature of the power of visitation.

In Angell & Ames on Corporations, 9th ed. c. 19, §§ 684, 685, the authors say:
"To render the charters or constitutions, ordinances and by-laws of corporations of perfect
obligation, and generally to maintain their peace and good government, these bodies are
subject to visitation; or, in other words, to the inspection and control of tribunals recognized
by the laws of the land. Civil corporations are visited by the Government itself, through the
medium of the courts of justice; but the internal affairs of ecclesiastical and eleemosynary
corporations are, in general, inspected and controlled by a private visitor.

87*87 "In this country, where there is no individual founder or donor, the legislature are the
visitors of all corporations founded by them for public purposes, and may direct judicial
proceedings against them for abuse or neglects which at common law would cause a
forfeiture of their charters."

The matter is discussed in Blackstone's Commentaries, in par. 3, chap. 18, Book I, and he
says:

"I proceed, therefore, next to inquire how these corporations may be visited. For
corporations, being composed of individuals, subject to human frailties, are liable, as well as
private persons, to deviate from the end of their institution. And for that reason the law has
provided proper persons to visit, inquire into, and correct all irregularities that arise in such
corporations, either sole or aggregate, and whether ecclesiastical, civil or eleemosynary."

And in respect to civil corporations he adds, same paragraph and chapter (*782):

"The law having by immemorial usage appointed them to be visited and inspected by the
King, their founder, in His Majesty's Court of King's Bench, according to the rules of the
common law, they ought not to be visited elsewhere, or by any other authority."

In 2 Kent, *300, the author says: "The visitation of civil corporations is by the Government
itself, through the medium of the courts of justice."

In Amherst Academy v. Cowls, 6 Pick. 427, 433, it was held that:

"Without doubt the legislature are the visitors of all corporations founded by them for public
purposes, where there is no individual founder or donor, and may direct judicial process
against them for abuses or neglects which by common law would cause a forfeiture of their
charters." The right of visitation is for the purpose of control and to see that the corporation
keeps within the limits of its powers. It would be strange if a corporation doing business in a
dozen States was subject to the visitation of each of those States, and 88*88 compelled to
regulate its actions according to the judgments — perhaps the conflicting judgments — of
the several legislatures. The fact that a state corporation may engage in business which is
within the general regulating power of the National Government does not give to Congress
any right of visitation or any power to dispense with the immunities and protection of the
Fourth and Fifth Amendments. The National Government has jurisdiction over crimes
committed within its special territorial limits. Can it dispense in such cases with these
immunities and protections? No more can it do so in respect to the acts and conduct of
individuals coming within its regulating power. It has the same control over commerce with
foreign nations as over that between the States. Boyd v. United States, 116 U.S. 616, arose
under the Revenue Acts, and the applicability of the Fourth and Fifth Amendments was
sustained. In that case is an elaborate opinion by Mr. Justice Bradley, speaking for the
court, in which the origin of the Fourth and Fifth Amendments is discussed, their relationship
to each other shown, and the necessity of a constant adherence to the underlying thought
of protection expressed in them strenuously insisted upon. I quote his words (p. 635):

"It may be that it (the proceeding in question) is the obnoxious thing in its mildest and least
repulsive form; but illegitimate and unconstitutional practices get their first footing in that
way, namely, by silent approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that constitutional provisions for the
security of person and property should be liberally construed. A close and literal
construction deprives them of half their efficacy, and leads to gradual depreciation of the
right, as if it consisted more in sound than in substance. It is the duty of courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. Their motto should be obsta principiis."

Finally, as the subpoena duces tecum was the initiatory step in the proceedings before the
grand jury against this petitioner, 89*89 as that is the major fact in those proceedings, and as
it is agreed that it is not sustainable, it seems to me that the order adjudicating him in
contempt should be set aside, and this notwithstanding that subsequently he improperly
refused to answer certain questions.

The case is not parallel to that of an indictment in two counts upon which a general
judgment is entered, and one of which counts is held good and the other bad, for a writ
of habeas corpus is not a writ of error, and the order to be entered thereon is for a
discharge or a remand to custody. If a discharge is ordered no punishment can be inflicted
under the judgment as rendered, and if a new prosecution is instituted containing the good
count a plea of former conviction will be a full defense. But in the case at bar an order for a
discharge will have no such result. The habeas corpus statute, Rev. Stat., § 761, provides
that "the court, or justice, or judge shall proceed in a summary way . . . to dispose of the
party as law and justice require." Justice requires that he should not be subjected to the
costs of this habeas corpus proceeding, or be punished for contempt when he was fully
justified in disregarding the principal demand made upon him.

The order of the Circuit Court should be reversed and the case remanded with instructions
to discharge the petitioner, leaving to the grand jury the right to initiate new proceedings not
subject to the objections to this.

I am authorized to say that the CHIEF JUSTICE concurs in these views.

[1] McAlister v. Henkel, post, p. 90.